California Proposition 36: Increases criminal penalties for certain drug and theft crimes

This measure rolls back some of the reforms contained in Proposition 47, the historic 2014 voter-approved measure that reduced penalties for most drug possession crimes and petty theft.

The measure comes amid an increase in high-profile “smash-and-grab” robberies and the fentanyl crisis.

Prop. 36 would do three things. First, it would increase criminal punishment for drug and theft-related crimes. Second, it would create a new requirement that people arrested for drug possession crimes be either sent to a drug rehabilitation facility or state prison.

Third, it would require courts to warn people convicted of selling or providing illegal drugs to people that they can be charged with murder if they keep doing so and someone dies.

Official title on the ballot: Proposition 36 — Allows Felony Charges and Increases Sentences for Certain Drug and Theft Crimes. Initiative Statute.

You are being asked: Should California pursue felony charges for possession of certain drugs and for thefts under $950 when the defendant has two prior drug or two prior theft convictions. And also, increase sentences for other specified drug and theft crimes, and allow defendants who plead guilty to felony drug possession and complete treatment to have their charges dismissed.

Understanding Prop. 36

Prop. 36 is a response to the increase in petty theft, shoplifting, and smash-and-grab robberies across California. Supporters say many people who are committing these crimes are addicted to drugs, although there is no data to support that.

How it would work

Petty theft: Under the measure, certain misdemeanors are turned into felonies. For example, theft of items worth $950 or less is a misdemeanor right now. Under Prop. 36, it becomes a felony if you already have two or more convictions for certain theft crimes (such as shoplifting, burglary, or carjacking), according to the state Legislative Analyst's Office.

The sentence would be up to three years in county jail or state prison as opposed to the one year in county jail for a misdemeanor right now.

Smash-and-grab robberies: Prop. 36 also allows felony sentences for theft or damage of property to be lengthened by up to three years if three or more people committed the crime together.

Treatment-mandated felonies: People found guilty of possession of certain drugs (such as fentanyl, heroin, cocaine, or methamphetamine) and who have two or more past convictions for drug crimes, including possession, would face the choice of going into rehabilitation or prison. Those who finish treatment would have their charges dismissed. Those who do not finish treatment could serve up to three years in state prison.

Requiring warnings: The measure requires courts to warn people that they could be charged with murder if they sell or provide drugs that kill someone. The warning would be given to people convicted of selling or providing certain drugs, including fentanyl, heroin, cocaine, and methamphetamine.

What people who support it say

Supporters include the California District Attorneys Association.

“What we do is address the nucleus of the retail theft problem, which is those individuals who repeatedly steal,” said Greg Totten, the association’s president. Much of the rest of law enforcement also backs Prop. 36. Totten praised the measure’s effort to target smash-and-grab robberies involving three or more people. “It inevitably is a more serious offense and has a greater impact on the merchant,” Totten said. “We think these provisions will help us deal with the explosion in retail theft,” he added.

Major retailers including Walmart and Target also support the measure.

What people who oppose it say

Opponents of the measure include Sam Lewis, who heads the Anti-Recidivism Coalition in Los Angeles. It is a justice reform group that also helps people when they get out of prison.

He called the measure “fear mongering” and unnecessary, adding there would be no need to increase penalties for drug and theft crimes if police did their job. “Police could stop petty thieves if they made misdemeanor arrests,” he said. Many police officers have complained that misdemeanors are not worth their time.

Lewis also said the measure amounts to a return to over incarceration for minor crimes. “We did mass incarceration,” he said. “We saw that it didn’t work and that’s why we moved away from it.”

Financial impact

Prop. 36 would increase state criminal justice costs, “likely ranging from several tens of millions of dollars to the low hundreds of millions of dollars each year,” according to the state Legislative Analyst’s Office.

The LAO says Prop. 36 would increase costs in two ways:

• Increase in state prison population. It would require some people who now serve their sentences at the county level to serve them in state prison. Also, it lengthens some prison sentences. In total, the prison population could increase by around a few thousand people. (There are about 90,000 people in prison now.)
• Increase in state court workload. This is because felonies usually take more time to resolve than misdemeanors. Also, treatment-mandated felonies would increase court workload.

Follow the money

Listen in: AirTalk tackles Prop. 36

Go deeper

Poll: Voters overwhelmingly back Prop. 36

Legislative Analyst’s Office report on the impact of Prop. 36

Prop. 36: Will California voters embrace 'tough love' for repeat drug offenders

LA Times' Editorial Board: No on Prop. 36. California shouldn’t revive the disastrous war on drugs